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EXHIBIT 2.1
FORM OF
AGREEMENT AND PLAN OF MERGER
OF
ALAMOSA PCS HOLDINGS, INC.,
A TEXAS CORPORATION
WITH AND INTO
ALAMOSA PCS HOLDINGS, INC.,
A DELAWARE CORPORATION
THIS AGREEMENT AND PLAN OF MERGER (the "AGREEMENT"), is entered into by
and among Alamosa PCS Holdings, Inc., a Texas corporation ("ALAMOSA-TX") and
Alamosa PCS Holdings, a Delaware corporation and wholly-owned subsidiary of
Alamosa-TX ("ALAMOSA-DE").
RECITALS
WHEREAS, Alamosa-TX desires to reincorporate from Texas to Delaware;
WHEREAS, the respective Boards of Directors of Alamosa-TX and
Alamosa-DE have approved the business combination transaction provided for
herein in which Alamosa-TX would merge with and into Alamosa-DE, its
wholly-owned subsidiary (the "MERGER"), with Alamosa-DE surviving the Merger, on
the terms and subject to the conditions set forth in this Agreement;
WHEREAS, at least two-thirds (2/3rds) of the shareholders of Alamosa-TX
have approved the Merger; and
WHEREAS, for Federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended (the "CODE").
AGREEMENT OF MERGER
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereby agree as follows:
ARTICLE I - DEFINITIONS
Capitalized terms used in this Agreement are used as defined in this
Article I or elsewhere in this Agreement.
"ALAMOSA-DE STOCK" means shares of the Alamosa-DE's Common Stock, $0.01
par value.
Agreement and Plan of Merger
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"ALAMOSA-TX STOCK" means Alamosa-TX's Common Stock, $0.01 par value.
"CLOSING" has the meaning set forth in Section 2.03.
"CLOSING DATE" has the meaning set forth in Section 2.03.
"DGCL" means the Delaware General Corporation Law, as amended.
"EFFECTIVE TIME" has the meaning set forth in Section 2.04.
"MERGER CONSIDERATION" means, in respect of each share of Alamosa-TX
Stock the right to receive one (1) fully-paid and nonassessable share of
Alamosa-DE Stock.
"TBCA" means the Texas Business Corporation Act, as amended.
ARTICLE II - THE MERGER
2.01 SHAREHOLDER & DIRECTOR APPROVAL. At least two-thirds (2/3rds) of
the shareholders of Alamosa-TX approved the Merger by written consent on January
19, 2000. In addition, the respective Boards of Directors of Alamosa-TX approved
the Merger by written consent effective on January 19, 2000, and the Board of
Directors of Alamosa-DE approved the Merger by written consent on January 5,
2000.
2.02 THE MERGER. Upon the terms and subject to the conditions set forth
in this Agreement, Alamosa-TX shall be merged with and into Alamosa-DE at the
Effective Time of the Merger. Following the Merger, the separate corporate
existence of Alamosa-TX shall cease and Alamosa-DE shall continue as the
surviving corporation and shall succeed to and assume all the rights and
obligations of Alamosa-TX in accordance with the DGCL and TBCA. Alamosa-DE, the
surviving corporation, will be responsible for, and obligated to pay, all
applicable Texas franchise tax and related fees of Alamosa-TX, if the same are
not timely paid.
2.03 CLOSING. The Closing of the Merger (the "CLOSING") will take place
at Alamosa-DE's principal office at a date to be mutually agreed upon between
the parties (the date of the Closing being referred to herein as the "CLOSING
DATE"). At the Closing, (i) the Certificates required by Article III shall be
delivered, (ii) the appropriate officers of Alamosa-TX and Alamosa-DE shall
execute and acknowledge the Articles of Merger, and the Certificate of Merger
and (iii) the parties shall take such further action as is required to
consummate the transactions described in this Agreement, the Articles of Merger
and the Certificate of Merger.
2.04 EFFECTIVE TIME. As soon as practicable on or after the Closing
Date, the parties shall file Articles of Merger and a Certificate of Merger
executed in accordance with the relevant provisions of the TBCA and DGCL,
respectively, and shall make all other filings or recordings required under the
laws of the TBCA and DGCL. The Merger shall become effective upon the later of
the filing of the Articles of Merger with the Texas Secretary of State or
Certificate of Merger with the Delaware Secretary of State (the time the Merger
becomes effective being the "EFFECTIVE TIME" of the Merger).
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2.05 EFFECTS OF THE MERGER. The Merger shall have the effects set forth
in the laws of the DGCL and TBCA.
2.06 CERTIFICATE OF INCORPORATION AND BYLAWS.
(a) The Amended and Restated Certificate of Incorporation of
Alamosa-DE as in effect at the Effective Time shall be the Certificate of
Incorporation of Alamosa-DE, the surviving corporation, until thereafter changed
or amended as provided therein or by applicable law.
(b) The Amended and Restated Bylaws of Alamosa-DE as in effect at
the Effective Time of the Merger shall be the Bylaws of Alamosa-DE, the
surviving corporation, until thereafter changed or amended as provided therein
or by applicable law.
2.07 DIRECTORS. The directors of Alamosa-DE at the Effective Time of
the Merger shall be the directors of Alamosa-DE, the surviving corporation,
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
2.08 OFFICERS. The officers of Alamosa-DE at the Effective Time of the
Merger shall be the officers of Alamosa-DE, the surviving corporation, until the
earlier of their resignation or removal or until their respective successors are
duly elected and qualified, as the case may be.
2.09 COPY OF THE AGREEMENT. An executed copy of this Agreement will be
kept on file at the offices of Alamosa-DE, the surviving corporation. A copy of
the Agreement will be furnished by Alamosa-DE, on written request and without
cost, to any holder of capital stock of Alamosa-DE (or former holder of capital
stock of Alamosa-TX) and to any creditor or obligee of Alamosa-DE or Alamosa-TX
at the time of the Merger if such obligation is then outstanding.
ARTICLE III - EFFECT OF MERGER ON CAPITAL STOCK
OF THE PARTIES; EXCHANGE OF CERTIFICATES
3.01 EFFECT ON CAPITAL STOCK. As of the Effective Time of the Merger,
by virtue of the Merger and without any action on the part of the holder of any
shares of Alamosa-TX Stock or any shares of capital stock of Alamosa-DE:
(a) CONVERSION OF ALAMOSA-TX STOCK. Each share of Alamosa-TX Stock
issued and outstanding as of the Effective Time of the Merger shall be converted
into the right to receive the Merger Consideration; provided, however, any
shares of Alamosa-TX Stock held by Alamosa-DE shall no longer be outstanding and
shall automatically be canceled and retired and shall cease to exist. As of the
Effective Time of the Merger, all shares of Alamosa-TX Stock shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any shares of Alamosa-TX
Stock shall cease to have any rights with respect thereto, except the right to
receive the Merger Consideration in exchange therefor.
(b) CANCELLATION OF TREASURY STOCK. All shares of Alamosa-TX
Stock, if any, that are owned as treasury stock as of the Effective Time of the
Merger shall be canceled and retired and shall cease to exist and no capital
stock of Alamosa-DE or other consideration shall be delivered in exchange
therefor.
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3.02 EXCHANGE OF CERTIFICATES; PAYMENT OF MERGER CONSIDERATION. Each
holder of record of a certificate or certificates that immediately prior to the
Effective Time of the Merger represented issued and outstanding shares of
Alamosa-TX Stock (the "CERTIFICATES") whose shares were converted into the right
to receive the Merger Consideration pursuant to Section 3.01 shall surrender
such Certificates for cancellation to Alamosa-DE, duly executed, and immediately
following the Effective Time. Alamosa-DE shall issue to such holder in exchange
therefor a certificate representing the number of shares of Alamosa-DE Stock
that such holder has the right to receive pursuant to the provisions of Section
3.01. Upon payment of the Merger Consideration, the Certificates so surrendered
shall forthwith be canceled.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE(S) TO FOLLOW.
Agreement and Plan of Merger
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IN WITNESS WHEREOF, the undersigned corporations have executed this
Agreement as of the __________ day of ___________, 2000.
ALAMOSA PCS HOLDINGS, INC.,
a Texas corporation
By:
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Xxxxx X. Xxxxxxxx,
President
ALAMOSA PCS HOLDINGS, INC.,
a Delaware corporation
By:
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Xxxxx X. Xxxxxxxx,
President
Agreement and Plan of Merger
ALAMOSA PCS HOLDINGS, INC.
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